Case C-450/12, HARK – Chinese stove pipe sets and EU anti-dumping law [judgment 2013, ECLI:EU:C:2013:824]

Is an imported Chinese stove pipe set to be considered as a part of a stove, range, grate, or cooker for the purposes of the EU’s anti-dumping Council Regulation (EEC) 2658/87 on the tariff and statistical nomenclature, and on the Common Customs Tariff? Or is it a tube or pipe fitting?

Facts
In 2009, HARK bought some stove pipe sets. These sets are used to connect heaters to chimney breasts. The stove pipe sets originated in China and so for customs purposes HARK declared the pipe sets as forming part of a stove, range, grate, or cooker under heading 7321 of the EU’s combined nomenclature, and it paid the German customs authority nearly 700 euro in charges. HARK imported some more of the stove pipe sets; however, the customs authority decided to inspect the sets and then classified them not as falling under heading 7321 but as falling under heading 7307 (tube or pipe fittings). As a result, HARK was obliged to pay nearly 900 euro, of which 850 euro in anti-dumping duty.

In 2011, HARK challenged this decision of the German customs authority. It claimed the customs authority’s classification of the pipe sets had been wrong. It pointed out that in one of the subdivisions to heading 7307 (on tube or pipe fittings), there was the suggestion that the diameter of the relevant pipes was for water or watery fluids. This was in contrast to the pipe sets which HARK was importing for they were only used for the transport of gasses, and had a much smaller diameter. This suggested that the anti-dumping measure was intended for a completely different product. Equally, these Chinese pipes were not for general usage but were only to connect heaters to chimney breasts so that exhaust gasses could be removed from the heaters. HARK added that the design of the Chinese pipe sets also differed in so far as they required no technical expertise to join a heater with a chimney; this made them quite unlike tubes or pipe fittings that needed experts to join pipes and tubes by means of for example welding, joint flanges, or screw threading. And to bolster its position further, HARK submitted that the anti-dumping duty had no point in this particular case since this was not a scenario in which dumping would occur: the prices of EU gas-pipe articles equated to those being imported, and the only reason why HARK was purchasing these stove pipe sets from a supplier in China was because of the sets’ consistently high quality.

The Finanzgericht Düsseldorf read the CJEU’s case law. In particular, it struggled with two paragraphs found in the CJEU’s judgment in Case C-336/11, Rohm & Haas Electronic Materials CMP Europe. On the one hand, there was paragraph 34 which explained that although the combined nomenclature did not define the notions of ‘parts’ and ‘accessories’, the notion of ‘parts’ implied, ‘a whole for the operation of which the part is essential and that the notion of ‘accessories’ implies an interchangeable part designed to adapt a machine for a particular operation, or to increase its range of operations, or to perform a particular service relative to the main function of the machine’. And in light of that paragraph, the Finanzgericht Düsseldorf wondered whether the removal of exhaust gasses could be considered to be essential for heaters.

However, the CJEU had then gone on in paragraph 35 to state that the part for the functioning of machine must be of such a nature that the machine or apparatus could not function without it. Applying that criterion to the case before it, the Finanzgericht doubted whether the extrusion of exhaust gasses was indeed really indispensable for a stove in a room.

Questions Referred
According to the Curia website, the Finanzgericht Düsseldorf has asked:

1. Is heading 7321 of the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, … as amended by Commission Regulation (EC) No 1031/2008 of 19 September 2008, to be interpreted as meaning that the stove pipe sets described in greater detail in the grounds can be regarded as parts of stoves, ranges, grates, and cookers?

2. If the answer to Question 1 is in the negative, can the stove pipe sets then be classified under heading 7307?